Citation Nr: 0106895
Decision Date: 03/08/01 Archive Date: 03/16/01
DOCKET NO. 99-17 232 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUE
Entitlement to a permanent and total disability rating for
pension purposes.
ATTORNEY FOR THE BOARD
C. Crawford, Counsel
REMAND
The veteran had active service from May 1989 to May 1993.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Jackson, Mississippi. The San Juan, Puerto Rico RO has
otherwise handled all aspects of the veteran's claim.
The veteran contends that his nonservice-connected
disabilities render him unemployable; hence, a total
disability rating for pension purposes is warranted. In
pension cases each of the veteran's disabilities must be
assigned a percentage rating and the diagnostic codes used
must be discussed. Thereafter, all ratings must be combined
under 38 C.F.R. § 4.25. Roberts v. Derwinski, 2 Vet.
App. 387, 390 (1992).
While recent VA examinations for the veteran's Meniere's
syndrome, claimed kidney stone disorder (nephrolithiasis),
and anxiety disorder were accomplished in February and March
2000, VA outpatient treatment reports from 1996 to 1999 show
that the veteran complained of and received treatment for
pharyngitis, asthma, allergic rhinitis, allergic
conjunctivitis, and tinea cruris. These disorders were not
diagnosed on VA examinations in February 2000, but it is not
clear that the veteran was examined for these disabilities or
that his claims folder was available to the examiners for
review of the evidence contained therein. Further
examination to determine disability due to these additional
disorders, and any others for which the veteran has received
treatment or complains of, is necessary to insure that his
claim receives full consideration.
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other
things, this law redefines the obligations of the VA with
respect to the duty to assist. This change in the law is
applicable to all claims filed on or after the date of
enactment of the Veterans Claims Assistance Act of 2000, or
filed before the date of enactment and not yet final as of
that date. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100
(2000). See also Karnas v. Derwinski, 1 Vet. App. 308
(1991).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, 2096-2099 (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because
the VA RO has not yet considered whether any additional
notification or development action is required under the
Veterans Claims Assistance Act of 2000, it would be
potentially prejudicial to the appellant if the Board were to
proceed to issue a decision at this time. See Bernard v.
Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)).
Accordingly, this case is REMANDED for the following:
1. The veteran should be afforded the
opportunity to submit copies of any
letters that he may have written or
statements from lay witnesses or
employers that may support his contention
that his disabilities prevent him from
obtaining and maintaining employment.
2. The veteran should be asked to
identify any physicians and medical
facilities from which he has been treated
or evaluated for any disability since
1999. After any further necessary
information and authorization are
obtained from the veteran, the RO should
obtain copies of pertinent medical
records, VA or private, including any
additional medical reports or evaluations
from the VA medical facilities in San
Juan and Ponce, Puerto Rico and New York,
New York. If any records are obtained,
the RO should incorporate them into the
veteran's claims folder.
3. Thereafter, the RO should schedule
the veteran for appropriate VA
examinations in order to determine the
presence, and, if present, the severity
of all disorders, to include Meniere's
syndrome, nephrolithiasis, a psychiatric
disorder, pharyngitis, asthma, allergic
rhinitis, allergic conjunctivitis and
tinea cruris. All indicated studies
should be performed. The claims folder
must be made available to the examiners
for use in the study of the veteran's
case. The examination reports must
reflect that the claims folder was
reviewed. The examiners should comment
on the extent to which the disorders
diagnosed affect the veteran's ability to
work.
4. The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.
5. The RO should then review the
veteran's claim in light of all of the
pertinent evidence of record. If the
veteran adds an argument to his appeal
which refers to any additional physical
disability, the matter should be fully
developed and addressed. A rating
decision should be prepared which lists
all of the veteran's disabilities and
assigns a disability rating to each one.
If the benefit sought on appeal remains
denied, the veteran should be provided
with a supplemental statement of the case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. The rating
criteria for each disability should be
provided and discussed. An appropriate
period of time should be allowed for
response.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. In
taking this action, the Board implies no conclusion as to any
ultimate outcome warranted. No action is required of the
veteran until he is so notified.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).